Marshall Islands Take India and Pakistan to Court Over Nuclear Weapons

In early March, lawyers representing the Marshall Islands began legal proceedings at the International Court of Justice (ICJ) in The Hague, Netherlands, against India, Pakistan, and the United Kingdom. The tiny Pacific Island state is seeking to bring the three countries into disarmament negotiations over their nuclear weapons program. The hearing begins the first phase of the case, in which the ICJ will decide if it has the jurisdiction to accept the Marshall Islands’ cases against the three countries.

For Islamabad, New Delhi, and London, the case might represent an irksome bit of international legal theater, but for the Marshall Islands the initiative is earnest. Home to the Bikini Atoll nuclear testing grounds, the Marshall Islands is one among few non-nuclear-armed states in the world to see the devastation of nuclear weapons up close. According to the United States embassy in the Marshall Islands, the U.S. government carried out 67 nuclear explosive tests between 1946 and 1958, including the infamous Castle Bravo test, which at 15 megatons involved the most powerful U.S. nuclear device ever to see atmospheric testing. (In 1962, the United States ended all atmospheric nuclear testing, followed by a complete moratorium on all nuclear testing in 1992.)

Tony deBrum, the island state’s foreign minister, recounted his experience witnessing U.S. nuclear tests in the Marshall Islands as a child: “The entire sky turned blood red,” he said, adding that islands were “vaporized” by nuclear weapons testing. “Our people have suffered the catastrophic and irreparable damage of these weapons and we vow to fight so that no one else on earth will ever again experience these atrocities,” he emphasized. Despite the lawsuits, the Marshall Islands and the United States maintain good diplomatic relations under their 1983 Compact of Free Association, which grants the United States responsibility for the islands’ security and defense needs. The United States has also compensated the Marshall Islands financially for costs related to its nuclear testing on the islands.

The current ICJ cases have nevertheless thrust the legacy of nuclear weapons testing in Marshall Islands and the global movement for nuclear disarmament back into the headlines. Nearly two years ago, in April 2014, the Marshall Islands filed lawsuits against all nine nuclear weapon states at the International Court of Justice. The United States, which is the one state that actually tested nuclear weapons in the Marshall Islands, was targeted through a separate path; the Marshall Islands filed a lawsuit in a U.S. Federal District Court. (That case was dismissed in February 2015 and has since been appealed by the Marshall Islands.)

At the core of the Marshall Islands’ original ICJ filing was the accusation that the nine nuclear weapons states–China, North Korea, France, India, Israel, Pakistan, Russia, the United Kingdom, and the United States–were “not fulfilling their obligations with respect to the cessation of the nuclear arms race at an early date and to nuclear disarmament.” India, Pakistan, and the United Kingdom, having made declarations to accept the ICJ’s compulsory jurisdiction under article 36, paragraph 2 of the court’s statute, are obliged to participate in the case. (The other six countries that the Marshall Islands has filed cases against have not made similar declarations.)

With the case underway at the ICJ, Pakistan, the United Kingdom, and India will present their arguments soon. India, according to the Associated Press, will argue that the court has no jurisdiction in the case. A final verdict from the court on the issue of jurisdiction could take several months. In a counter-memo provided to the court last fall, India also highlights its United Nations voting record and criticizes the Marshall Islands’ record on nuclear disarmament issues.

If the Marshall Islands’ intention with these lawsuits was to bring attention to the lackadaisical rate at which some nuclear-armed states have pursued disarmament, then it may see some success, even if it isn’t in the form of a landmark ICJ advisory opinion. The involvement of India and Pakistan, two states that remain outside of the Nuclear Non-Proliferation Treaty, with growing nuclear arsenals and mutual enmity, can serve to underline the real threat of nuclear conflict today. If there is an inter-state nuclear exchange anytime soon, it may well be between India and Pakistan.

The ICJ, if it decides it does have jurisdiction, may reinforce its non-binding 1996 advisory opinion on nuclear weapons, which stated that states are legally obliged “to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.”